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Cases to Watch: United States Supreme Court to Decide Whether Title VII’s Prohibition against Sex Discrimination Protects LGBTQ Individuals

By Brian J. MacDonough on October 1, 2019

The U.S. Supreme Court is scheduled to hear three cases on October 8, 2019 that will determine whether Title VII’s prohibition against sex discrimination in employment includes discrimination on the basis of sexual orientation and gender identity.

The first case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (No. 18-107), presents the question of whether Title VII protects transgender and transitioning employees. In this case, a former funeral director was terminated from her employment after she disclosed that she was transgender and would be dressing in accordance with the funeral home’s female dress code. In the underlying decision, the Sixth Circuit Court of Appeals held that Title VII prohibits discrimination on the basis of both a failure to conform to sex stereotypes and an employee’s transgender and transitioning status.

The other two cases address whether the prohibition against sex discrimination under Title VII includes discrimination based on sexual orientation. The U.S. Circuit Courts of Appeal have been split on this issue. In Altitude Express Inc. v. Zarda (No. 17-1623), a skydiving instructor was terminated from his employment after disclosing to a customer that he was gay. In that case, the U.S. Court of Appeals for the Second Circuit held that discrimination based on sexual orientation fell within Title VII’s prohibition against sex discrimination, reasoning that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”

On the other hand, in Bostock v. Clayton Counter, Ga. (No. 17-1618), a child welfare services worker was fired after he allegedly “mismanaged public money,” which he claims was a pretext for the real reason – that he is gay. In that case, the U.S. Court of Appeals for the Eleventh Circuit held that Title VII did not apply to sexual orientation.

These cases will, no doubt, continue to garner a great deal of attention in the months to come. That said, it is important to remember that some states, including Massachusetts, already have statutes expressly prohibiting discrimination based on sexual orientation and/or gender identity, but such prohibitions are not universal. Stay tuned for further updates.

Brian J. MacDonough – Partner, Employment Department Chair

Brian J. MacDonough, chair of the Employment Department, counsels and represents executives and professionals in sophisticated employment and compensation matters and employment litigation. Read Bio